Something important happened in Virginia this week: Governor Terry McAuliffe restored voting rights to Virginia felons who have served their time and completed the subsequent probations. In the age of mass incarceration, that’s a lot of people: more than 200,000 in Virginia alone. Nationally, an estimated 5.85 million people have lost their voting rights because of felony convictions. That’s bigger than the winning margin in every recent presidential election other than 2008.
But the question that probably leaps to mind is: Why would changing that be a good thing? The class of felons includes a lot of bad people, so why do we want more bad people picking our leaders? But felon voting rights are important for both micro and macro reasons.
The individual ex-con. The micro-level reason is that we want an ex-con to have a path back into normal life. (John Oliver did a great segment on this a few months ago. The ex-con’s difficulty re-entering society also made it into pop culture through the recent hit movie Ant-Man.) The old-fashioned notion was that by the time a prisoner got released, he had “paid his debt to society” and everything was square now. But in reality, many ex-cons can only hope for a second-class citizenship, which permanent disenfranchisement symbolizes. And if you can never hope for a normal life, returning to crime becomes more tempting.
Decades ago, you might start over by taking the Jean Valjean approach: Move far away and keep quiet about your criminal history. But in this era of universal databases, the relentless Inspector Javert has been automated: Your past is bound to catch up with you.
Large-scale voter suppression. The macro-level reason is that our criminal justice system is biased, so disenfranchising felons is a way to diminish the voting power of blacks, the poor, and other over-policed segments of society.
The racial difference might be defended if it were solely the result of blacks committing more crimes than whites, but that’s far from the whole story. An ACLU report says:
[R]acial disparities result from disparate treatment of Blacks at every stage of the criminal justice system, including stops and searches, arrests, prosecutions and plea negotiations, trials, and sentencing. Race matters at all phases and aspects of the criminal process, including the quality of representation, the charging phase, and the availability of plea agreements, each of which impact whether juvenile and adult defendants face a potential [life without parole] sentence. In addition, racial disparities in sentencing can result from theoretically “race neutral” sentencing policies that have significant disparate racial effects, particularly in the cases of habitual offender laws and many drug policies, including mandatory minimums, school zone drug enhancements, and federal policies adopted by Congress in 1986 and 1996 that at the time established a 100-to-one sentencing disparity between crack and powder cocaine offenses.
Racial disparities in sentencing also result in part from prosecutors’ decisions at the initial charging stage, suggesting that racial bias affects the exercise of prosecutorial discretion with respect to certain crimes. One study found that Black defendants face significantly more severe charges than whites, even after controlling for characteristics of the offense, criminal history, defense counsel type, age and education of the offender, and crime rates and economic characteristics of the jurisdiction.
Governor McAuliffe invoked the racial issue by comparing felon disenfranchisement to the poll tax, but I think a better comparison is to another Jim Crow relic: literacy tests. The literacy test had a similarly virtuous rationale: Do you want illiterate people picking our leaders? But it was applied in biased ways, and combined with other systemic discrimination (i.e., separate-and-unequal school systems) to keep blacks from voting.
Partisan politics. As so often happens these days, what ought to be a simple good-government argument has gotten swamped by partisan power politics. Blacks overwhelmingly vote Democratic, so Republicans are against anything that enfranchises more of them. (This has the cycle-completing effect of motivating more blacks to vote Democratic.) And so, Kentucky’s Democratic Governor Steven Beshear issued a similar order as he was leaving office, but the incoming Republican Governor Matt Bevin rescinded it before it could take effect. Felon disenfranchisement effects about 1 in 19 Kentuckians, but 1 in 6 blacks.
As Mike Dukakis learned when he became the Willie Horton candidate in 1988, felons (especially black ones) make for bad political optics. And that puts governors on the horns of a dilemma: Like Gov. Besmear, they can wait until they’re leaving office to restore voting rights, when critics can claim that they didn’t dare do it until they were slinking out the door. Or, like Gov. McAuliffe, they can restore rights earlier in their terms, and face the criticism that they are trying to remake their own electorate.
Optics or partisanship aside, though, it’s the right thing to do. We’ll have a hard time tackling the racial biases in our justice system as long as they continue to give one side an advantage on election day.
If Bernie Sanders isn’t going to be president, what happens to the movement that coalesced behind him?
A week ago, on the eve of the New York primary, there was still a plausible scenario in which Bernie Sanders would be inaugurated as president next January: New York had elected Hillary Clinton to the Senate twice, so an upset win there — or maybe even just a photo finish that would keep her from declaring victory until Wednesday morning — would the change the narrative of the campaign in a way that could set Bernie on the road to the White House.
Until that moment, the recent string of Sanders victories could still be written off as the calendar’s fortuitous grouping of several Bernie-friendly contests. But if he won New York, no one could deny that the campaign had seen a real momentum shift. Clinton’s big margins in delegate-rich early states like Texas, Florida, and Ohio might start to seem like old news. The combination of a New York upset, Clinton’s shrinking margin over Sanders in national polls, and Sanders’ advantage in head-to-head match-ups with Republicans might be enough to turn around the polls that showed him trailing in the next round of states (Pennsylvania, Maryland, Connecticut, Rhode Island, and Delaware, which vote tomorrow), shrink Clinton’s pledged-delegate lead to insignificance by the end of the primaries in June, and convince superdelegates that he was the candidate the party needed to unite behind at the Democratic Convention in July.
But that didn’t happen.
Instead, Clinton had a crushing 16-point win in New York and extended her pledged-delegate lead by an estimated 31. Polls show Clinton continuing to hold big leads in Pennsylvania and Maryland, with a smaller lead in Connecticut (and little polling in Rhode Island and Delaware). Even if he could squeak out wins those states, it wouldn’t be enough at this point. To catch up, he needs landslides — a long string of them — and there’s no indication that they’re coming.
Hillary is now virtually certain to go the convention with a sizeable lead in pledged delegates and primary votes. Back when Sanders supporters hoped to win in the primaries and were worried about superdelegates overruling the will of the people, big Bernie-supporting organizations like Democracy for America and Move On committed themselves to the position that the pledged-delegate winner should be the nominee. They would have a hard time walking that back now. And besides, superdelegates (who are precisely the kind of party establishment figures Clinton appeals to) rushing to Sanders has always been hard to picture.
In short, Hillary Clinton is going to be nominated.
What Bernie accomplished. None of that should diminish the impressiveness of what the Sanders campaign has done. A year ago, it might have seemed like a moral victory if Sanders had put up some token resistance in Iowa and New Hampshire — 25% or 30%, maybe — before fading out of the picture altogether. Instead, Bernie has won states in every region but the South, and created moments of real panic inside the Clinton campaign. Rather than a Clinton coronation, the outcome has ended up hanging on a single factor: Sanders’ inability to break through with non-white voters. (The margins Clinton achieved in New York — 75%-25% among blacks and 64%-36% among Latinos — are fairly typical. Sanders and Clinton split New York’s white vote 50-50.)
In the national conversation, progressive ideas have moved closer to the mainstream. Several of Occupy Wall Street’s points have stopped sounding fringy and are well on their way to becoming common sense:
The top 1% have captured too much of our nation’s wealth
Their institutional power gives their viewpoint too much influence in the media.
Our virtually unregulated campaign finance system makes it too hard for politicians to stand up to them.
As a result, their combination of market power and political power rigs the American economy in their favor.
Looking to 2020 or beyond, candidates will have to seriously consider funding their campaigns out of small donations, knowing that they’ll face criticism if they go the Super PAC route instead.
Those are significant accomplishments. So while it’s natural for Sanders supporters to be disappointed in how things are turning out, the campaign has not been a failure.
But where should it go from here?
Scorched Earth? One possibility is that Bernie could go down swinging: Keep hammering at Clinton’s trustworthiness and Wall Street ties; promote a persecution narrative that the process is rigged against him; make the convention as contentious as possible; and either encourage his supporters to vote for a third-party candidate like the Greens’ Jill Stein, or even run himself as an independent.
I think Bernie would probably encourage people to [support Hillary if he loses] because he doesn’t have any ego in this thing. But I think a lot of people are, ‘sorry, I just can’t bring myself to’.
The threat that their unwillingness to unite behind Hillary might hand the White House to Donald Trump does not move them: On this episode of The Young Turks, Cenk Uygar argues that Trump is a fascist, so “we can’t roll the dice” on a Trump presidency. But Jimmy Dore pushes back:
Think how strong the left would be. Think how strong — and also, we’d have all the independents and we would pick off Republicans. … I think it would put liberalism over the top. You know how we always say that Americans are liberal but they just don’t know it? I think they would know it.
Getting in line? A second possibility is to do what Hillary Clinton herself did eight years ago: After pushing all the way to the end of the primaries and coming up short, she endorsed Barack Obama in early June. It was not a half-hearted, check-the-box effort: She and Bill worked hard for Obama, in spite of die-hard supporters who tried to organize against him. Bill’s speech was one of the highlights of the 2008 convention.
If Sanders did something similar, if he didn’t just say “Yeah, I guess she’s better than Trump” but toured the country campaigning for the Democratic ticket, that could go a long way to unify the party for the fall.
But Clinton would have to tango as well. If after the convention she acts like Sanders has socialist cooties, or that appearing on a stage with him would threaten her image with moderate swing voters, Bernie could hardly be blamed if he spent the fall doing something else, either campaigning for progressive candidates lower on the ticket or just resting up in Vermont.
Planting seeds? An in-between possibility was outlined by Michael Lerner of Tikkun: Bernie could try to organize his supporters and contributors into a “Tea Party of the left”. (Lerner suggests the name “Love and Justice Party”).
Like the Tea Party, this wouldn’t be an attempt to break the two-party system, but would be an organized faction inside the Democratic Party. Just as Tea Partiers were adamant in voting against Obama in 2012 and understood that Mitt Romney was their only viable option, there would be no doubt that the Love and Justice Party supported Hillary Clinton over Donald Trump. But it would be forming and supporting its own identity rather than merging seamlessly into the Clinton campaign.
At the convention, Sanders delegates could push for changes in the process that would make the Democratic Party more democratic (and presumably more open to a progressive takeover) in future cycles: no superdelegates, no closed primaries, and — even though Bernie did well in them — no caucuses.
For the fall campaign, I picture a message that is honest and authentic: Hillary isn’t everything we want, and we will be watching her like hawks once she takes office. But if you want more people to have access to health care rather than less, if you want to continue talking to Iran rather than bombing it, if you want to expand women’s rights and voting rights and minority rights rather than shrinking them, if you want a higher minimum wage, affordable college, and a job-creating infrastructure program, then Hillary Clinton is the clear choice in this November’s election.
[You can argue that the Greens or an independent Sanders candidacy would represent those positions better, but I think that misses the central point of democracy: It’s not about finding a candidate who agrees with you 100%. If it were, then we should all cast write-in votes for ourselves. Rather than self-expression, democracy is about building favorable governing coalitions.
In a parliamentary system, a vote for Stein would basically be giving her your proxy to negotiate a progressive place in a center-left coalition after the election. But in the American system, voting for Stein means opting out of any possible governing coalition.]
For lower offices, L&J would like some Democrats better than others. Just as Mike Lee and Ted Cruz and Marco Rubio entered office identified as Tea Party Republicans, 2017 could see a class of L&J Democrats come to Washington. Going forward, Democrats who were less progressive than their districts might begin to fear primaries, just as insufficiently conservative Republicans do.
Of course, a Love and Justice Party would lack what the Tea Party has always had bushels of: billionaire cash, the kind of seed money that can go looking for a candidate rather than the other way around. Sanders has proved that millions of liberals will give at least a little money to a campaign that excites them. But can that be turned into a lasting political identity?
Forming a party-within-the-party would test whether Bernie’s network of small donors really can assemble into a billionaire-sized megazord. Would they be willing to go on contributing to build a movement, even in years when there is no election, and when the L&J candidates for the next election haven’t emerged yet?
That’s what the Koch Brothers and their friends do for the Tea Party. Can millions of small donors balance them, year in and year out?
The lesson for 2020. As I said earlier, what Clinton’s victory over Sanders has hinged on is the support she has gotten from blacks and Hispanics. Many Sanders supporters have been frustrated by that, because Sanders’ positions on the issues ought to appeal to non-whites, who are even more likely than whites to be on the wrong side of the rigged economy. At times, that frustration has devolved into condescension: What’s wrong with those people? Why aren’t they smart enough to realize which side their bread is buttered on?
But the problem isn’t with them, it’s with us: Many progressives, Bernie included, have a 2-dimensional view of politics. Everything is about ideology and grand proposals like single-payer healthcare. But the Clintons understand that politics is also about relationships and identities. Hillary is winning this race because, long before the official campaign started, she developed relationships in black and Hispanic communities nationwide. Non-whites felt like they knew her and understood exactly how far they could or could not count on her.
Early in the campaign there was an apparently tangential argument about whether Bernie had been involved in the civil rights movement, which his campaign answered by digging up stories of his work as a student activist at University of Chicago in the 1960s. But like so many of the arguments that make up a campaign, the significance of that one was under the surface. The real question in the minds of black voters, particularly in the South, was: “Why am I only hearing about this guy now that he wants my vote?”
You can argue that the people who asked that question were just ignorant, that Bernie had been on their side for a long time and if they didn’t know about him it was their own fault. But that kind of answer doesn’t win anybody’s support.
The next Bernie. If the next progressive candidate, the one who inherits Bernie’s mantle in 2020 or 2024, is going to win among non-whites, he or she has to start building those relationships now. Over the next eight years, a 2024 wannabe needs to invest significant time and effort in working with blacks and Latinos and Asians on the local issues they care about: pushing their legislative proposals, bringing national publicity to their marches and demonstrations, fund-raising for non-white local candidates, and so on.
That runs counter to an image that Bernie has taken advantage of, one appeals to progressive whites: a man of no particular national ambition who suddenly feels the Hand of Fate upon him and realizes he has to take up leadership of the progressive cause. But a candidate who invokes that Cincinnatus image is just going to repeat Bernie’s failure: He or she is going to represent an ideology, and make proposals non-whites ought to like, but not have built the relationships necessary to win.
As much distaste as we might feel for ambitious office-seekers, and as appealing as a candidate untainted by presidential ambition might be, politics is a real profession that calls for real work and real skills. Building a multi-racial progressive coalition is a long-term political project; it needs real politicians who focus on the job for years at a time, not someone who feels the Hand of Fate the year before the election.
In the 1990s, Clintonism was all about avoiding the fate of McGovern, Mondale, and Dukakis. Two decades later, is that still an issue?
If you google “Sanders McGovern”, you’ll find a fairly large number of articles debating whether Bernie Sanders is or isn’t the second coming of George McGovern, the anti-establishment, left-leaning Democrat who suffered a historic landslide loss to Richard Nixon in 1972.
Reading those articles, I keep recalling a quote from the 19th-century mathematician Karl Friedrich Gauss: “I have had my solutions for a long time, but I do not yet know how I am to arrive at them.” In every case, it looks to me like the author started with a desired conclusion, then looked for ways to justify it.
I think the question deserves something better than that, so I’m going to do the exact opposite: I’m going to write down everything I know about this issue and leave you with a cliffhanger at the end. I’ve thought about this and done some research. In the end, though, I have hopes and I have fears, but certainty escapes me. I can’t promise you that a gamble on Bernie Sanders would win or lose in November. All I can do is draw a clearer picture of what we’d be betting on.
Where I start. I’m a somewhat left-leaning Democrat who also really wants to win in November. If I could snap my fingers and install single-payer health care or a carbon tax, I absolutely would. But I also think ObamaCare is a huge improvement on the health care system we had in 2009, I’m glad we’re finally starting to do something (though not nearly enough) about climate change, and I’m afraid of losing all that under President Trump or Cruz.
I went to one of the early Bernie rallies (in Portsmouth in May) and I definitely felt the Bern when he talked not just about health care and the environment, but also about tough regulations for Wall Street, creating jobs with a big push to rebuild our infrastructure, investing in college for our young people, and reducing the influence that big-money donors have on our political system. The growing inequality of wealth looks to me like a problem that isn’t going to fix itself, and will destroy the American way of life if it goes much further.
But I’m also not willing to sign up for a Charge of the Light Brigade. If asking for the moon means that the voters will give us nothing, and that instead the gradual progress we’ve made under President Obama will be undone, then count me out. If that’s the choice, then more gradual progress under another President Clinton sounds fine to me. On the other hand, if that’s not the choice, if we really could have the kind of revolutionary change Sanders calls for, then I don’t want to leave those possibilities on the table. So I voted for Bernie in the New Hampshire primary, but with similar uncertainty to what TPM’s John Judis is feeling as the Maryland primary approaches.
For me it’s a real question: Is another McGovern-type loss really something to worry about, or is it a Boogie Man we’ve been afraid of for far too long already?
Ultimately, we can’t be certain about the answers unless we run the experiment: nominate Bernie and see what happens. But it ought to at least be possible to sharpen our understanding of the questions, and to know what we’re counting on if we decide to take the chance.
What the McGovern Problem isn’t. Often the McGovern Problem gets stated too simplistically, which makes it easy to shoot down: Democrats can’t run a candidate who’s too liberal. It’s as if the White House were a roller coaster, with a sign outside saying: “You must be at least this conservative to enter.”
If that’s the problem, then liberals are right to refuse it any consideration, because otherwise we give the game away before it starts. Important issues like single-payer or a less belligerent foreign policy are off the table by definition; we’re not even allowed to make our case to the country.
Republicans didn’t accept that lesson from their Goldwater loss in 1964. They continued making their case, and by 1980 the Goldwater wing of the GOP was electing President Reagan.
History shows that American political sensibilities change. Ideas that are “too radical” in one era — even liberal ideas like Social Security or child labor laws or the 40-hour week — can become common sense in the next. Who’s to say that free college or converting the economy to sustainable energy won’t join that list?
Plus, if Democrats can’t talk about what we believe in, the public will quite correctly perceive that we’re hiding something, and even a centrist Democratic ticket will face a suspicious electorate: What aren’t they telling us? What secret socialist agenda are Democrats planning to spring on the country after Inauguration Day?
What the McGovern Problem is. The problem I have in mind is much more specific than just being “too liberal”: Republicans have a tried-and-true game plan for running against liberal Democrats. A bunch of negative stereotypes sit in the public mind waiting to be activated, and they seem to work really well to cut our candidates off at the knees.
So the problem isn’t just that McGovern lost and then Mondale lost and then Dukakis lost. It’s that they lost in almost exactly the same way. There’s a buzzsaw attack waiting in the fall campaign, one that our candidates don’t face in the primaries, because it doesn’t work on a purely Democratic electorate. But we know it’s coming.
The issue that confronts every potential Democratic nominee, the one that gets labeled electability, isn’t “Are you too liberal?” but “Are you marching straight into the buzzsaw?” When the predictable attack comes — the attack you haven’t had to deal with at all in the primaries — will your candidacy survive it?
But even as we consider this question, we need to remember that the Dukakis wipeout was 28 years ago. If you’re one of the young voters whose energy is fueling the Sanders campaign, there hasn’t been a real test of the McGovern Problem — or a Republican presidential landslide — in your lifetime. Maybe the old dragon has lost its teeth by now, and all those gray-haired Hillary voters are quivering in front of shadows on the wall.
How can we know if that’s the case? I think we need to tell the story from the beginning. Then we’ll be in a better position to judge whether it’s ancient history or history that’s about to repeat itself.
It starts with LBJ. If we’re going to decide how relevant McGovern is in 2016, we need to go back a little further, to the last big push for progressive change in America: Lyndon Johnson’s Great Society.
When LBJ assumed the presidency late in 1963, he was riding a wave of national grief over President Kennedy’s assassination. The Democrats already controlled Congress, and then in 1964 the Republicans played into Johnson’s hands by nominating their most polarizing candidate, Barry Goldwater. After a huge landslide with long coattails, LBJ began 1965 with a national mandate and 2-1 majorities in both houses.
He got a lot done. The accomplishments of 1964-1966 make a stunning list, especially from the gridlocked perspective of 2016. The Social Security Act of 1965 created both Medicare and Medicaid in one fell swoop. By itself that was a bigger change than anything that has happened under Obama, but Congress just passed it and moved on. The bill got bipartisan support, wasn’t filibustered, and Johnson didn’t have to spend the rest of his term fighting back attempts to repeal it or block it in the courts.
Jim Crow finally ended: Congress passed the 24th Amendment (that banned poll taxes), the Civil Rights Act, and the Voting Rights Act. Johnson began affirmative action for government jobs by executive order.
He declared War on Poverty: In addition to Medicaid, Johnson created food stamps, and funded urban renewal programs to clean out the slums. When Bill Clinton “ended welfare as we know it” in the 1990s, what we knew was LBJ’s version of welfare.
The backlash. The Vietnam War is usually remembered as Johnson’s undoing, but the backlash against the Great Society would have been a thing regardless. The race riots of the 1960s led to a narrative that blacks were “ungrateful” for Johnson’s anti-poverty programs and the advances in civil rights. The riots combined with rising crime and the Supreme Court’s focus on the rights of defendants to create the impression that criminals were being coddled and government lacked the will to defend public order. The phrase bleeding heart liberal referred to someone who had less sympathy for you than for the ghetto-raised black teen-ager who was mugging you.
School desegregation was finally hitting the North in a big way, leading professional-class whites to flee to the suburbs, and leaving the white working class behind to deal with urban racial conflict. Affirmative action led to the claim that restless blacks were being bought off by giving away the opportunities of working-class whites. (After all, a black kid who got into Harvard through affirmative action wasn’t acing out some legacy admission like a Kennedy.) The phrase limousine liberal referred to well-to-do Democrats who could afford to be idealistic about race and poverty, because they were insulated from the social impact of their programs.
Tax-and-spend liberal didn’t catch on until the Reagan years, but that stereotype also comes from the Great Society backlash: If there was a problem, LBJ was likely to throw money at it. The logic — that we were a rich country with way too many poor people, so we could fix things by moving money around — may seem a little simplistic now, given the complex social dynamics of poverty. (In hindsight, urban renewal looks especially naive. Its high-rise housing projects quickly became worse than the slums they replaced.) But that’s the kind of thing you can’t know until you’ve tried it.
By 1968, the Democratic Party was badly divided. The only possible unifying figure, Bobby Kennedy, was assassinated. The Chicago convention turned violent. A third-party run by George Wallace split off what in FDR’s day had been “the solid South”. Even in the North, Wallace appealed to the kind of working-class whites who also had once been reliable Democrats (the kind who support Trump now). LBJ’s VP, Hubert Humphrey, split the rest of the vote almost down the middle with Richard Nixon, but Nixon got a slight plurality and an electoral college win.
McGovern/Nixon. George McGovern came to national attention at the 1968 convention as the leader of Bobby Kennedy’s orphaned delegates. By 1972, he was the first candidate to understand the new rules that made the primaries decisive. (Humphrey had gotten the 1968 nomination without ever entering the primaries. 1968 was the last hurrah of the smoke-filled-room era, when party leadership could do pretty much whatever it wanted.) He ran an insurgent campaign that portrayed the existing Democratic establishment as corrupt. That culminated at the 1972 convention, when the McGovern delegates disqualified Mayor Daley’s Illinois delegation in favor of a rebel slate led by Jesse Jackson. (Without the backing of the Daley machine, McGovern managed only 41% of the vote in Illinois in the fall. He won only Massachusetts and the District of Columbia.)
In terms of policy, McGovern wanted to push the Great Society social programs further, while rejecting the militaristic Kennedy/Johnson foreign policy that had led to Vietnam. With Wallace out of the picture (after being wounded in an assassination attempt), Nixon knew that a two-party race depended on capturing the Democrats who had defected to Wallace in 1968. So the key arguments in the campaign came from an organization called Democrats for Nixon.
DfN attacked McGovern on two fronts. First, his defense plan would leave the country dangerously weak.
And second, his social programs would tax working people (pictured as a white male construction worker) and give money to undeserving people (who aren’t pictured, but are easily imagined to be blacks or young white hippies).
Less explicitly, Nixon’s campaign associated McGovern with the counterculture: people who took drugs and despised soldiers and got involved in violent protests. Nixon himself claimed support from the “great silent majority“, people who did their jobs and raised their kids and lived by the old-fashioned American values that the counterculture rejected. The flag and patriotism belonged to conservatives; they were weapons to wield against liberals (literally, in this Pulitzer-winning photo), who should “love it or leave it“.
The anti-liberal formula. By 1976, the Republican Party had been stained by Watergate, and Jimmy Carter, a born-again Navy veteran from Georgia, won by projecting an image very different from McGovern. But Reagan unseated Carter in 1980, and in 1984, Walter Mondale challenged him. Mondale was the candidate of the Democratic establishment, which by this point was the Great Society playing defense. Reagan successfully attacked him as a liberal, and in 1988 Reagan’s VP, George H. W. Bush, ran a similar — and similarly successful — campaign against Mike Dukakis.
By now the anti-liberal attack was a formula based on a few well-defined stereotypes:
Liberals won’t protect us from foreign enemies. This is usually phrased in terms of naivety: Liberals want to cut defense spending and avoid military intervention because they foolishly trust treaties and organizations like the UN. They believe our enemies are like us and want to come to mutually beneficial agreements. They don’t understand that our enemies are truly evil and can only be controlled through strength.
For example, Reagan ran this commercial against Mondale. It starts “There’s a bear in the woods. For some people, the bear is easy to see. Others don’t see it at all. Some people say the bear is tame.”
Liberals won’t protect us from criminals at home. Again, they are naive about evil. They believe crime is a social problem they can solve with more welfare spending, rather than a moral problem that requires police and jails.
Liberals don’t believe in America. They’re not patriotic, and they want to retell American history to make us the bad guys. They have no faith in the economic individualism that made this country rich, and keep telling us we should be more like France or Sweden.
Liberals want to weaken moral values. The exact content of this attack varies from era to era, depending on what the moral problem of the day is. Abortion is a constant, but there’s also pornography, video games, rock music, drugs, homosexuality, promiscuity, and transgenderism. Usually, this is related somehow to religion, with the implication that whatever religion a liberal claims to practice is actually just a smoke screen that hides an underlying atheism, relativism, nihilism, or hedonism.
Liberals think they’re smarter than you are and want to make your decisions for you. Liberals are book-smart but don’t have common sense. They want to tell you who you can hire, which customers you have to serve, what you can drive, what you can eat or drink, how to discipline your children, what words you are allowed to say, and so on. Rhetoric about “the liberal elite” or “political correctness” invokes this stereotype.
Liberals want to raise taxes on working people to buy votes from lazy people. Nixon’s construction-worker ad became a paradigm. Mitt Romney’s “47%” hurt him only because it was too explicit. We still hear about “free stuff“, “dependence on government“, and “makers and takers“.
Bill Clinton and the New Democrats. If you didn’t live through it, it’s hard to communicate just how depressing the Dukakis debacle was. Entering the fall campaign, Democrats hadn’t thought of Dukakis as a McGovern-style left-winger. (Jesse Jackson had been the candidate of the party’s left wing, and Dukakis had resisted pressure to pick him as VP.) On the national scene, Dukakis was a fresh face who should have been able to slough off past stereotypes. He didn’t have a big spending program, wasn’t pushing a tax increase, and his Greek-immigrant-pride thing should have shielded him from the patriotism issue. One post-convention poll had Dukakis ahead of Bush 55%-38%.
But when the Republicans unleashed the formulaic anti-liberal attack, Dukakis proved just as vulnerable as McGovern and Mondale. His poll numbers quickly collapsed, and Bush (who had never seemed like a particularly strong candidate) didn’t just win, he romped his way to 426 electoral votes.
After 1988, Democrats had a sense of “What do we have to do?” The answer came from Bill Clinton. You can’t understand Clintonism without grasping that post-Dukakis despair.
Clinton recognized that the problem was as much image as substance: It wasn’t liberalism itself, it was getting tagged with the liberal stereotypes. You had to compromise somewhat, but you could still have broadly progressive values. You couldn’t stop Republicans from throwing the McGovern/Mondale/Dukakis attacks at you, but (like Jimmy Carter in 1976) you could still win if you maintained an image that the stereotypes wouldn’t stick to. Far-right conservatives might still believe them, but the swing voters wouldn’t.
Clinton wasn’t a “Massachusetts liberal” like Dukakis: He was a Southern Baptist with a drawl who easily projected a good-old-boy sensibility. He declared himself to be “a new kind of Democrat”, and he shifted Democratic rhetoric across the board. He “felt our pain”, but always justified his programs as fairness rather than appealing to compassion, and he rooted his case in respect for traditional American values like hard work.
We’ll think of the faith of our parents that was instilled in us here in America, the idea that if you work hard and play by the rules, you’ll be rewarded with a good life for yourself and a better chance for your children. Filled with that faith, generations of Americans have worked long hours on their jobs and passed along powerful dreams to their sons and daughters. Many of us can remember our own parents working long hours on their jobs and then coming home and helping us with our homework. The American dream has always been a better life for people who are willing to work for it.
He also regularly did something infuriating if you found yourself on the wrong end of it. Like the kid who escapes bullying by finding the mob some weaker kid to bully, Clinton escaped the liberal stereotype by projecting it onto other people. A Sister Souljah moment(also sometimes known as hippie punching) is when a center-left politician repudiates someone further to the left as a way of establishing his non-scariness. (The phrase comes from Clinton’s denunciation of a black hip-hop artist.)
Clinton made a career out of stealing Republican issues and putting his own spin on them: Balance the budget? Reform welfare? He’d do it, and if Republicans wanted to oppose him they’d have to move even further to the right. In retrospect, some of Clinton’s “accomplishments” — Don’t Ask Don’t Tell, the Defense of Marriage Act, and his crime bill — can only be defended by observing that something even worse probably would have happened if he hadn’t gotten out in front of a popular movement that was gaining momentum.
He compromised, but he won, and it mattered that he won. That’s why Ruth Bader Ginsburg and Stephen Breyer are on the Supreme Court rather than two more Clarence Thomases. While Clinton sometimes rattled his saber and kept defense spending relatively high, America managed to go eight years without launching a major ground war. He left office with low unemployment, low inflation, a budget surplus — and a 66% approval rating.
Every Democratic presidential nominee since has in one way or another learned from Clinton’s example, and has maneuvered to project a centrist image. (I believe that’s why Obama drops his g’s.) In that time, the Democratic candidate has lost the popular vote only in 2004, and even that election was close.
One measure of the success of the Clinton strategy is that each recent Democratic nominee has been attacked in some way that was uniquely personal, rather than just being fed to the generic liberal-killing buzzsaw. Bill Clinton was “Slick Willy”, Al Gore was so wooden you wouldn’t want to have a beer with him, John Kerry didn’t deserve his medals, and Barack Obama was a shallow celebrity who palled around with terrorists. The too-liberal case was still there, but it didn’t stick for a majority of voters, so Republicans had to try other attacks.
The downside of Clintonism. As George Lakoff and others have often pointed out, there is no centrist worldview. So while stealing Republican issues and hippie-punching figures to your left may put you in a position to rein in something really bad — to turn, say, a constitutional amendment defining marriage into DOMA, which the Supreme Court (with Breyer and Ginsburg in the majority) could later find unconstitutional — along the way you reinforce the overall conservative frame, and marginalize anyone who promotes a liberal frame. That may win elections in the short term, but makes it hard to build a movement.
For example, Obama’s attempt in 2011 to strike a “grand bargain” with John Boehner to cut the long-term deficit was a Clintonian move that backfired: Not only did the bargain not happen, but treating the manufactured 2011 budget crisis as a negotiating opportunity set up the much scarier 2013 game of chicken over the debt ceiling. Obama’s grand-bargain offer legitimized the deficit as a more important concern than creating jobs, as well as the idea that long-term cuts in Social Security and Medicare might be the solution.
Even if you take a Clintonesque incremental view of change, the Democratic Party needs its idealists to produce the long-term vision that gives the party substance. Maybe we will only make progress in small steps, but somebody still needs to provide a clear vision of where we’re trying to go.
So what about Bernie? Remember: whether or not Sanders “is McGovern” isn’t about whether he can be tied to a label like liberal or even socialist. Of course he can. Everybody knows he’s challenging Clinton from the left and has called himself a socialist; that’s baked into his public image already. It hasn’t hurt him yet in those national polls that show him beating Trump and Cruz by margins far larger than Hillary’s. (One recent poll has Sanders beating Trump by 20%.)
The more important questions are first, when Republicans begin attacking him with the tried-and-true formula, will the anti-liberal stereotypes stick? And second, does that still matter the way it did in 1972, 1984, or 1988?
I think several of the stereotypes could stick to Bernie, sometimes fairly and sometimes unfairly.
Foreign enemies. So far, Sanders’ entire defense-and-foreign-policy focus has been on what he hasn’t done, wouldn’t do or wouldn’t have done: He wouldn’t have invaded Iraq. He wouldn’t give the NSA such a free hand to gather intelligence on Americans. He wouldn’t torture. He wouldn’t keep Guantanamo open. He doesn’t support defense spending at the current levels, and opposes certain specific weapons systems.
And none of that by itself is a problem. (In fact, I agree with him, and Hillary agrees with a lot of it.) But the majority of Americans are not ready to stop being a superpower. So in a general-election campaign, Sanders will at some point have to pivot back to what he would do: What level of defense spending does he support? What weapons does that buy? What Sanders Doctrine describes the situations where is he willing to use those weapons to defend our country, our allies, or our interests? (Example: Putin decides to conquer the rest of Ukraine. What do you do?)
When he does have to state a positive position on defense, is he then open to a Nixonian attack where a hand sweeps forces off the table? Is he convincing as a possible Commander in Chief, or does he look like Mike Dukakis in a tank?
Crime. The problem is similar: So far we’ve heard about the things Sanders wants to undo: He wants to put fewer people in jail. He wants to stop police brutality. And that’s all good: We went overboard both on the War on Drugs and on the scary-black-people image. We’ve been way too eager to interpret dark skin as a predictor of criminality, and to see prison as the solution to our fears, especially the irrational ones.
But crime is also real and has real victims. Americans want to hear that their president is serious about protecting them. Can Bernie provide that assurance? There are two Willie-Hortonish avenues of attack here: violence connected (at least in the public mind) with Black Lives Matter, like the Baltimore riots; and crimes committed by undocumented immigrants (which do exist, even though in general the undocumented are not a big crime risk).
Again, there are answers to such attacks, but (as the Reagan-era adage has it) “If you’re explaining you’re losing.” When somebody shows you a real woman who has been raped by an immigrant, quoting the statistics on immigrant crime is not a compelling response.
Tax and spend. Sanders admits that his Medicare-for-all plan would raise middle-class taxes. To be fair, middle-class families would still benefit from his plan, because their healthcare costs should go down by more than their taxes go up. But voters are quicker to believe in taxes than in the benefits they fund. (That’s why ObamaCare was so vulnerable in the 2010 midterm elections.) Plus, not even Sanders’ supporters are comfortable with their taxes going up. And again, if you’re explaining, you’re losing. Look for an ad in which layabouts of various races endorse Bernie and look forward to the benefits they expect from him, while somebody else works thanklessly to clean up after them.
Moral values. The problem here is religion. Sanders admits that he is “not particularly religious” and, though a Jew by ethnicity and culture, does not belong to any congregation or synagogue and does not regularly attend services of any type.
That doesn’t kill you in a Democratic primary, and at various times Bernie has spoken about his beliefs in a heartfelt way that works fairly well for a liberal audience: “I think everyone believes in God in their own ways. To me, it means that all of us are connected, all of life is connected, and that we are all tied together.” But to a lot of the country, that Spinoza-like position is just a fancy kind of atheism, and polls consistently show that atheism (moreso than even Islam) is a deal-breaker for many voters.
I picture one of those man-in-the-street interview ads, where somebody says, “He claims to be Jewish, but he sounds like an atheist to me.” That’s a two-fer: Not only does it use the A-word, but it dog-whistles to anti-Semites by reminding them that at best Sanders is a Jew.
Thinks he’s smarter than you. Smart is good, if you handle it right. Bill Clinton is a Rhodes scholar. Barack Obama was president of the law review at Harvard. But both of them know how to use their considerable personal charm so as not to seem too smart or too stuck-up about it. Both have that good-teacher ability to answer a question confidently without making the questioner feel stupid.
I don’t see that in Bernie. When challenged, he has a tendency to raise his voice and wag his finger. If I were debating Sanders, I’d be trying to bring out the side of his personality that talked down to Vermont voters in this Q&A event. (“Have you heard of ISIS?” he demands.)
Smarter-than-you is a quality that unlocks other parts of the liberal stereotype. The root Republican message is that they want you to be free to make your own choices in the marketplace, while Democrats want government to choose for you. (Unfortunately, the unregulated marketplace Republicans champion often leaves you with no good choices. What good is a menu of dozens of healthcare plans, if none of the ones you can afford will keep you from going bankrupt if you get sick?) Democrats need to communicate that they appreciate the awesome presumption that regulation involves, and that they will use that power with humility. But when Bernie Sanders thinks he knows the right answer, humility seems far from his mind.
Believing in America. A big piece of the Clinton/New Democrat thing was being able to invoke patriotism without sounding fake or hokey. Can Sanders do that? Bernie often compares the U.S. unfavorably to more socialistic European countries like Denmark or France, and if you dip into the archives, he’s also said good things about Cuba and Nicaragua (when the Sandinistas were in power and the U.S. was funding the opposition). Again, a man-in-the-street ad could be effective: “I wonder why he doesn’t run for president of France?”
Does it still matter? The most convincing point in the Sanders-is-not-McGovern articles is that times have changed. Thom Hartman writes:
Comparing Sanders to McGovern assumes that the country is in a similar state now as it was 44 years ago, and that’s just not true. … [In 1972] the middle class was much larger, and it was doing much better than it is today. And so the older generation voted for Nixon, they voted to keep things on track, because they simply didn’t feel as screwed over as we did in the younger generation.
And Dave Johnson says that the old manipulative tricks won’t work in the Twitter era:
Sanders’ mass appeal, big crowds and enthusiasm in spite of a virtual media blackout shows that America has grown up a lot since 1972. Thanks to the Internet, we are able to communicate past media manipulation and organize. Many people are now well aware of how Republicans use racial and other divisions to misdirect and manipulate people from seeing what is being done to us.
There’s also a demographic argument: The electorate that responded to George Bush’s racist dog whistles in 1988 was much whiter than America is in 2016. When Jerry Falwell’s Moral Majority was organizing against Mondale in 1984, the percentage of Christians was far higher and “Nones” far lower than it is today.
So their argument boils down to this: In a less white, more secular America, where the sufferings of the middle class and the planet are far more apparent, and citizens have better ways to figure out who to vote for than watching 30-second TV ads, the progressive message is more compelling than the old liberal stereotypes. Healthcare as a right, free college, the threat of global warming, and the rest of the Sanders message will overpower the false image of wimpy, naive, America-hating, too-smart-for-their-own-good liberals.
And here, I think we reach the point where the evidence in inconclusive: America is different now, but is it different enough? Quantitative questions — questions that center on “how much” rather than yes or no — are hard to answer without running the experiment. There’s a risk and there’s a reward. How to weigh them against each other is something we all have to decide for ourselves.
Currently Republicans have a 54-46 Senate majority (as long as independents Angus King of Maine and Bernie Sanders of Vermont continue caucusing with the Democrats). That what gives them the power to monkey-wrench the Obama administration and the country as a whole.
Fortunately for the Democrats, though, this fall all the Republican senators from the Tea Party wave election of 2010 are up for re-election, including some who won in reliably blue states (like Illinois’ Mark Kirk). Conversely, the Democratic incumbents are the ones who were strong enough to win when the wave was crashing against them.
So Republicans have to defend 24 seats and the Democrats only 10. That improves Democrats’ prospects of gaining the five seats (or four plus the presidential election, since the vice president breaks ties) necessary to gain control.
Predictions. My usual prediction guru is Nate Silver, but other than a couple of articles about specific races his 538 blog hasn’t weighed in yet on the Senate. Three other election-predicting web sites (Larry Sabato’s Crystal Ball, Cook’s Political Report, and Predictwise) tell similar stories: Democrats are likely to gain Republican seats in Illinois and Wisconsin, and they have an even shot to flip four others: Ohio, Pennsylvania, New Hampshire, and Florida. The only Democratic seat that looks iffy is the one Harry Reid is retiring from in Nevada.
Sabato thinks three other Republican seats — Arizona, Missouri, and North Carolina — could flip if a serious Democratic wave develops. Cook and Predictwise are pessimistic about Arizona and Missouri, but agree on North Carolina. Predictwise sees possible trouble for Republicans in Indiana and Louisiana, but Cook and Sabato disagree.
The three have a minor disagreement about how secure Democratic Senator Michael Bennett is in Colorado (partly because there’s a chaotic Republican primary still to come), but nobody rates that race as a toss-up.
In the PredictIt prediction market, a share that will pay $1 if the Democrats control the Senate is going for 64 cents, compared to 36 cents for Republican control.
This far out, I don’t think anybody’s predictions are all that reliable, but they do give you a sense of where the battle lines are. If the Democrats are going to gain four seats, they need to win in Wisconsin and Illinois, and then take three of the five toss-up states: Nevada, Florida, New Hampshire, Ohio, and Pennsylvania. (That turns a 1-6 disadvantage into a 5-2 advantage, gaining four.) If a Democrat doesn’t win the presidency, Democrats need to take four of the five toss-ups.
The seven key races. In Wisconsin, former Senator Russ Feingold is trying to get his old seat back from the guy who beat him in 2010, Ron Johnson.
In Illinois, two-term Congresswoman Tammy Duckworth is trying to unseat Mark Kirk.
In New Hampshire, Governor Maggie Hassan is running against Senator Kelly Ayotte. New Hampshire Republicans always try to project the Warren Rudman image of an independent-minded person with broadly conservative values, but when push comes to shove, Ayotte does what the Mitch McConnell tells her. So while she’s agreed to meet with Garland for appearance’s sake, she’s holding firmly to the party line of refusing hearings and or a vote.
In Ohio, ex-Governor Ted Strickland faces Senator Rob Portman, who suddenly discovered that same-sex couples deserve a shot at marriage after his son came out of the closet. You can give him credit for having the courage to say so, or you can see it as one more example of a Republican whose compassion ends at the boundaries of his own family.
In Pennsylvania, Senator Pat Toomey is defending his seat against an undetermined Democrat. Joe Sestak, who lost to Toomey by only two percentage points in 2010, is fighting a primary battle with Katie McGinty, the governor’s former chief of staff, who is less well known, but is backed by most of the party establishment.
In Nevada, former state attorney general Catherine Cortez Masto is expected to be the Democratic candidate. In recent polls, she’s been running slightly behind Republican Joe Heck and significantly ahead of 2010 Senate candidate Sharron Angle, famous for her call for “Second Amendment remedies” if Democrats couldn’t be stopped at the ballot box.
The unexpected toss-up is Florida. This is Marco Rubio’s seat, which he decided not to defend to emphasize how committed he was to his presidential campaign. Neither party has picked a candidate yet; the primary is August 30. Polling on both sides has Undecided far ahead of any candidate.
What you can do. Citizens influence elections in three ways: by voting (if there’s a race in your state), giving money (if you have it), and working. Working for a candidate is a lot easier if you live nearby, but in this era of inexpensive long-distance calls, just about anybody can phone-bank for a candidate, and you can always write letters to newspapers in a candidate’s state. If nothing else, you can go to a candidate’s web site, click whatever link asks you to volunteer, and see what they say.
Who to support. The voting part is a no-brainer: If there’s an election in your state, you should vote. Unless you’re rich, though, you’re not going to give significant amounts of money to more than one or two candidates, and even one candidate can absorb all the volunteer time you have. So once you get past voting, you need to be selective: Which candidates deserve your support most?
Well, that depends on what you want.
If you’re sick of watching your candidates lose and you just want to win one you can feel good about, both Feingold or Duckworth are favored, and either can give you a sense of vicarious pride. In 2001, in the mad panic that followed the 9-11 attacks, the Senate voted 98-1 for the Patriot Act. Feingold was the 1. Duckworth flew helicopters in Iraq, where she lost both her legs in a rocket attack. Now she says, “When my colleagues start beating the drums of war, I want to remind them what the true costs of war are.” She also would increase the woeful number of women in the Senate (currently 20 out of 100).
If you want to make the biggest difference, the most toss-uppy toss-up is either New Hampshire, where PredictIt is giving 53-47 odds in favor of Hassan, or Pennsylvania, where Predictwise makes the (still unchosen) Democratic candidate a 48-52 underdog. (The polls in Pennsylvania are dismal for the Democrats, but that’s not unusual when an incumbent is matched against someone who hasn’t nailed down the nomination yet.) I’d pick Hassan here, because all Senate seats have the same power, while New Hampshire is a small state. So one contribution or one campaign worker is likely to have a bigger impact in New Hampshire than in Pennsylvania.
If you want to dream the big dream, I’d try to unseat John McCain in Arizona. It’s remotely possible, and it would make an enormous splash.
If you want to send a message, the senator most responsible for stalling the Garland nomination (other than maybe McConnell, who isn’t up for election this year) is Iowa’s Chuck Grassley, the chair of the Judiciary Committee. Grassley was once thought to be untouchable, and still is seen as a likely winner, but the Garland issue is making him vulnerable. As a result, some high-profile Democrats have been drawn into the race who might otherwise have decided it’s a waste of effort, like former Lieutenant Governor Patty Judge.
Or just roll some dice and pick a race. Whatever you decide to do, you’ll feel better about it than if you do nothing.
Merrick Garland is just the tip of a dangerous iceberg.
There have been a few cracks, but Mitch McConnell’s blockade of Merrick Garland’s Supreme Court nomination is holding. The quick threat of a primary against Kansas Senator Jerry Moran (when it looked like he might break ranks) not only got him back in line, but served as a warning to any other Republican who might consider taking the Senate’s constitutional duties seriously.
Ironically, the court blockade is one of the indirect effects of the Supreme Court’s dismantling of campaign finance laws, and shows the advantage that development gives extremists in the Republican Party. A few cycles ago, the threat of whipping up a statewide primary challenge from scratch against an otherwise popular incumbent in just a few months (the Kansas Senate primary is in early August) would have been laughable. And it still would be laughable if the far Left made a similar threat against a Democratic senator over some progressive issue. But everything changes when a handful of deep-pocketed donors can call up a potential challenger and say: “We’ve got the money, are you ready to go?”
For some broader perspective, consider that Republicans have only confirmed 16 judicial nominees since becoming the Senate majority in January 2015. At this same point in President George W. Bush’s eighth year, when Democrats controlled the Senate, 40 judicial nominees had been confirmed.
… The last time the Senate confirmed a judge was in mid-February, and that was only because McConnell postponed a package of judicial nominees from 2015 into the new year. There are 15 judicial nominees ready for a confirmation vote right now, but only one of those votes has been scheduled. Another 32 are waiting on the Judiciary Committee, which hasn’t held a hearing for a nominee since January. Federal courts, meanwhile, are at 79 vacancies and climbing.
That kind of behavior almost forces the Democrats to respond in kind if the political situation reverses. To do anything else — to let the Senate resume its constitutional duties as soon as a Republican enters the White House — would mean conceding that only Republican presidents are empowered to appoint judges. Such acquiescence would guarantee a conservative judiciary for the foreseeable future.
That exemplifies why it’s nearly impossible to be the Good Government Party once the other side decides to be the Bad Government Party. And so the deterioration I’ve been tracking in my Countdown to Augustus posts goes on.
Last fall, Bendery explored the effects of a broken judicial-appointment system: overloaded judges who burn out and cases that drag on forever. Courts prioritize criminal cases for good reason: A long delay risks either leaving a predator on the streets or wrecking an innocent defendant’s life by letting him rot in jail. But something has to give, as Chief Judge Morris England of the U.S. District Court for California’s Eastern District explains:
What happens is you have to keep pushing civil cases further out. They’ve already been waiting sometimes three to four years. I get concerned when cases are so old. Memories are fading; people are no longer around. It’s not serving anyone trying to get justice.
Take that a step further: As the federal court system continues to deteriorate, any right those courts enforce deteriorates as well. Little by little, we wind up living in a country where “Yeah it’s illegal, but what are you going to do about it?” is a viable strategy.
That, in turn, creates a temptation to flip the situation around: to get even with your own illegal act, and let the other side beg for justice from the broken courts. And so the back-and-forth of political hardball begets a similar back-and-forth of hardball in everyday life.
HB2 is just over a week old. But the 5-3 Supreme Court decision that will strike it down is already clear.
When North Carolina’s legislature came together for a one-day emergency session to pass HB2, a state law that struck down Charlotte’s LGBT anti-discrimination ordinance before it could take effect, a lot of us amateur legal buffs wondered: “Didn’t we do this already?”
For the most part we did, and it was all resolved 20 years ago in the Supreme Court case Romer v Evans. Then it was Colorado instead of North Carolina, and Denver, Boulder, and Aspen were playing the roles of Charlotte, Chapel Hill, and Durham. The cities had instituted anti-discrimination protection for gays and lesbians, so in 1992 Colorado’s voters passed Amendment 2, stating that nowhere in Colorado would “homosexual, lesbian or bisexual orientation, conduct, practices or relationships” entitle anybody to claim discrimination in court.
The Colorado Supreme Court struck the law down, holding that it made gays and lesbians into a class of people with diminished political rights: Other Coloradans could petition their local governments for protection against discrimination, but gays and lesbians could not. The state appealed — the “Romer” on the case name is then-Governor Roy Romer, a Democrat — and in 1996 the Supreme Court supported the conclusion of the state court, but with somewhat different logic:
[Amendment 2’s] sheer breadth is so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything but animus toward the class that it affects; it lacks a rational relationship to legitimate state interests.
Romer is really the first place where the Court said that you can’t pass laws to make gays’ lives harder just because you disapprove of them. It led to the whole series of decisions that culminated in last summer’s Obergefell decision legalizing same-sex marriage nationwide. (It was also the first of many gay-rights decision written by Justice Kennedy, who we’ll get to later.)
So is HB2 obviously unconstitutional, without the need to reinvolve the Supreme Court? Not exactly.
You see, HB2’s authors did something clever: Unlike Amendment 2, the law doesn’t actually mention the people it targets. HB2 is in two parts. The part that got all the publicity was about bathrooms: It doesn’t say anything about transgender people, it just says you can only use the bathroom that corresponds to the gender on your birth certificate.
The other part makes it impossible for a city to pass any kind of LGBT non-discrimination ordinance, but it does so without mentioning LGBT people. Ostensibly, this part of HB2 isn’t about sex or gender at all; it’s about creating a uniform business climate across the state, so that prospective employers have only one set of rules to deal with. North Carolina already had a Wage and Hour Act that uniformized various regulations about wages. HB2 amended it to declare that non-discrimination provisions must be uniform across the state too.
Of course, the only people affected by the change are LGBT folks, because those were the only local non-discrimination ordinances in North Carolina. But the law doesn’t single them out by name. It’s just, like, a coincidence or something.
Again, we’ve been here before (in the 1960s and 1970s) with race and gender discrimination. Slate‘s Mark Joseph Stern explains:
Under Arlington Heights v. Metropolitan, courts must attempt to glean whether a law with a disparate impact on minorities was motivated by discriminatory intent. To do so, courts examine several factors—all of which align chillingly with HB 2. For example, does the challenged law disproportionately affect one minority? (Yes.) Does the “historical background” reveal “a series of official actions taken for invidious purposes”? (Yes—the stated purpose of the law was to overturn Charlotte’s LGBT nondiscrimination ordinance.) Do the events leading up to the law depart from normal decision-making procedures? (Yes; the legislature rammed the law through in record time with minimal discussion.) Does the legislative history reveal governmental animus? (Absolutely: From the start, Republican legislators have vocally supported HB 2 as an effort to disadvantage LGBT people.)
But there’s a still a problem: In all those gay-rights decisions he wrote, Justice Kennedy dodged the question of whether laws concerning gays and lesbians require some form of heightened scrutiny, like laws affecting race and gender do. Laws that affect women or racial minorities may seem to be about something entirely neutral, but because governments have a long history of race and gender bias, courts can’t take that at face value; they have to consider the broader situation in the way Stern describes. Lower courts have sometimes decided that heightened scrutiny was called for — the Colorado Supreme Court did in Romer, for example — but Justice Kennedy has a frustrating way of reaching decisions without resolving the underlying legal issues (something I have complained about repeatedly).
So there is something to decide here: Should North Carolina’s legislature be taken at its apparent word, that this is just about a uniform business climate, unrelated to any animus towards the LGBT community? As Stern points out, that’s a really hard case to make, if the Court lets itself consider the broader context at all. But no particular precedent says it absolutely has to do that.
So this will reach the Supreme Court, and the votes there are already obvious: Roberts, Alito, and Thomas will want to favor HB2, just as they have been on the wrong side of all the gay rights cases. Breyer, Ginsberg, Sotomayor, and Kagan will be want to strike it down, since I believe they all already see sexual orientation as requiring heightened scrutiny. That leaves Kennedy, who will do what he always does: decide the case in favor of gay rights, without laying any principles that will keep the next case from coming back to him.
So that’s a 5-3 vote to strike HB2 down, a margin that will be unaffected by whether Justice Scalia is replaced in time to matter.
Did Trump get the pro-life position wrong? Or just express it too bluntly?
Fact-checkers tell us that Donald Trump makes mistakes all the time. [1] But Wednesday something unusual happened: He made a mistake he had to back away from.
You can hardly blame him, because his interviewer (Chris Matthews) cheated: He asked follow-up questions and kept badgering for an answer. (Who knew journalists could do that?) After two minutes of dancing back and forth on the topic, Trump let Matthews nail him down:
MATTHEWS: Do you believe in punishment for abortion? Yes or no, as a principle?
TRUMP: The answer is that there has to be some form of punishment.
MATTHEWS: For the woman.
TRUMP: Yeah. There has to be some form.
That statement set off not just feminists, but the anti-abortion folks Trump was trying to appeal to. So Trump had to retreat, ultimately settling on the approved pro-life response: After abortion becomes illegal, doctors should be punished, not women. (He also claimed that MSNBC created the confusion about his views by editing his exchange with Matthews. That should raise his pants-on-fire-lie numbers even higher: The interview was pre-recorded, but aired in its entirety.)
But Trump’s about-face just started a new and even more interesting debate: What kind of mistake did Trump make? Did he get the pro-life position wrong? Or did he spill the beans by stating that position bluntly, without the usual flowery misdirection?
After all, most of Trump’s apparent gaffes have been of the second type: He says what his followers are really thinking, without the caveats and nuanced word choices that make those positions defensible in front of the educated elite. Is that what happened here?
The case for spilling the beans. The essence of the pro-life position is that as soon as sperm meets ovum, you have a fully ensouled human being, with all the God-given rights anybody else has. [2] The natural consequence of this belief is that any abortion, at any stage of a pregnancy, is murder.
If you follow where that logic naturally goes, then everybody connected with an abortion is conspiring to commit murder. After all, any mother who paid a man to stick a knife through her baby’s heart would be guilty of murder, so if there is no moral distinction between a baby and a fetus (an “unborn child” or “pre-born baby” in pro-life jargon), any woman who pays a doctor to end her pregnancy must also be a murderer. Why should she go unpunished?
And in fact, in states where pro-lifers have managed to put restrictions on abortion, women do get punished:
Multiple U.S. women — with few options to get themselves to one of their state’s dwindling legal clinics — have been arrested for illegal abortions after they bought abortion-inducing medication online. And thanks to the growing number of laws aimed at protecting “fetal rights,” other women have been punished for doing activities that allegedly harmed their pregnancies. Americans have been charged with murder for allegedly seeking to harm their fetuses by attempting suicide, using illicit drugs, or even falling down the stairs.
A woman in Indiana has been sentenced to 20 years in prison for “feticide”. And if pro-life activists are trying to help her or change the law so that no other women get punished, they’re being awfully quiet about it. As far as that goes, Indiana has a pro-life governor who could commute her sentence at will, if he thought that punishing her was unjust.
But no matter how logically it follows from pro-life assumptions, it seems harsh and cruel to punish women who didn’t want to get pregnant and are just trying to get their old lives back. Nobody likes to think of themselves as harsh and cruel, and besides, it’s bad politics. So pro-lifers deny that’s where they’re headed, even though all the evidence says they’re really headed there.
The counter-argument. When stating a position I disagree with, there’s always a danger that I’ll make a straw man out of it, so I’ll let some prominent pro-lifers state it themselves at length. Here’s how Marjorie Dannenfelser of the Susan B. Anthony List put it on NPR’s Morning Edition:
[T]he pro-life movement has never, for a very good reason, promoted the idea that we punish women. In fact, we believe that women are being punished before the abortion ever occurs. In other words, the early feminists believed this was the ultimate exploitation of women.
The real earliest roots of feminism and the women’s movement really embraced the idea that her innermost soul, in Susan B. Anthony’s words, recoil from the dreadful deed, but thrice guilty is the one who drove her to the deed. And who is that? It’s the abortionist. And that who – is who is the one to be punished when there’s a law against abortion.
the pro-life movement has historically opposed punishing women who have abortions — instead focusing on holding abortion practitioners criminally accountable for the unborn children they kill in abortions.
That pro-woman mentality is partly due to the understand[ing] that the abortion industry preys on women — selling them abortions by lying to them about the humanity of their unborn children and the destructive effects abortion will have.
Charles Camosy, author of Beyond the Abortion Wars, wrote an op-ed for The New York Daily News:
Isn’t pro-lifers’ refusal to follow the logic of their position a dishonest political game — one played because pro-lifers know that, as Trump just learned, the logically consistent position alienates virtually everyone?
That might be true if women have an uncoerced choice to have an abortion. But as I argue in some detail in my book “Beyond the Abortion Wars,” that’s not how our culture works.
Broadly legal abortion is the product of privileged men.
… Unsurprisingly, the all-male Roe court made women “free” to act like men: to imagine themselves as able to live sexual, reproductive, economic, professional lives as men do. Women’s equality was not about getting equal pay for equal work. Not about getting mandatory family leave and affordable child care. Not about passing strict anti-discrimination laws in hiring practices.
What was essential for social equality, according to those responsible for our abortion laws, was that women are able to end their pregnancies when they are a burden on their economic and social interests. But being pregnant and having a child is often so burdensome precisely because our social structures have been designed by and for people who cannot get pregnant. Notice how, in this context, our abortion laws end up serving the interests of men and coercing the so-called “choice” of women.
Someone who is coerced into having an abortion as a means of having social equality should not be put in jail. Women, like their prenatal children, are victims of our horrific abortion policy. Instead, physicians who profit from the violence of abortion ought to be punished.
Ad hoc. Whenever I listen to anti-abortion rhetoric, I’m always struck by the ad hoc reasoning. Points are made that would seem to have implications for lots of other issues, but somehow those concerns vanish as soon as the topic shifts away from abortion.
The easiest place to start is with the Susan B. Anthony quote. It sounds great, doesn’t it? The head of the anti-abortion Susan B. Anthony list quoting Anthony herself, as if she were carrying forward the great woman’s legacy. Unfortunately, there’s no historical record of Anthony ever saying it, and precious little to indicate that Anthony had a position on abortion at all. Even if the quote were legitimate, isn’t it obvious that “the one who drove her to the deed” is not the abortionist, but the man who got her pregnant? (Odd that nobody ever talks about punishing him.)
Dannenfelser and Ertelt seem to be imagining a world in which doctors run some sort of boiler-room operation that cold-calls pregnant women and tries to sell them abortions. Or maybe abortionists hang around outside gynecologists’ offices (the way anti-abortion activists sometimes surround abortion clinics) trying to talk women out of their firm intention to give birth.
Reality is quite different: There is a strong demand for abortion services and always has been, back to the days when young women would come to the local potion-maker or hedge-witch looking for a miscarriage-inducing herb or tea. It is a fact of life that not every woman who gets pregnant wants to raise children at this point in her life, or maybe ever. [3] And even a family that is raising children already doesn’t necessary want to have more of them.
I can see the woman as a pure victim in some cases (say when a high school girl gets pregnant by one of her teachers, who then arranges the abortion for her and talks her into it), but in many cases an abortion is the result of a mature woman deciding what she wants to do with her life — a possibility that pro-life activists seem to ignore entirely.
Many, like Ertelt, claim she is likely to regret this decision. (An actual survey says 95% don’t.) But where else in our lives do conservatives argue that the government should stop us from making regrettable choices, or punish the people who help us carry them out? Quite the opposite: a basic tenet of conservative philosophy is that people should be free to make their own mistakes … in every case but this one.
Camosy’s argument is even more ad hoc. If the majority of pro-lifers felt this way, the political party where they have so much influence would be working on the issues he accuses the Roe v Wade court of ignoring: “equal pay for equal work … mandatory family leave and affordable child care … strict anti-discrimination laws in hiring practices.” In fact the exact opposite is true, and the Republican opposition to these proposals is not even controversial within the party. As soon as the topic shifts away from abortion, Republican concern about women making coerced choices vanishes.
Do they even believe it themselves? People who genuinely believe something don’t make ad hoc arguments; the things you really believe don’t wink in and out depending on the topic. So I have to wonder: Do pro-lifers themselves believe what they’re saying?
Fred Clark, a turncoat from the pro-life movement, says no. He quotes Dannenfelser’s response as an example of what he calls “the Standard Answer”, and then recalls his own experience.
I relied on the Standard Answer when I was a good, faithful pro-lifer. It made the question go away, just as it was meant to do. The Standard Answer worked very well for me until one day, suddenly, it didn’t.
It stopped working for me because, alas, I started listening to what I was saying.
That led to an “unsettling” realization.
I did not want my questioners to think that I wanted to see these women punished because I genuinely did not want to see them punished. At some basic level — some level at which I had not yet allowed myself to articulate my own thoughts to myself — I did not think that punishing these women would be good, fair, right, necessary or just. I thought punishing these women would be wrong.
Why would I think that? Well, that was the question that the Standard Answer was designed and employed to prevent me from ever asking of myself. …
I came to realize I was incapable of defending the central dogma of the anti-abortion religion my people had adopted as the central pillar of our faith — that a fertilized egg is morally and legally indistinct from a human child or a human adult. If that claim were defensible, then I would have no reason not to want to see those women punished and no reason not to try to convince others that they also should want to see those women punished.
Please note what I’m not saying here. I’m not saying I became incapable of believing this claim about the full personhood of the zygote, but that I became incapable of defending it. I’m not sure that anyone is ever capable of believing this claim. [4]
Anyone with functioning compassion understands what Clark realized: that it’s just wrong to punish a woman who sees no better path into the future than having an abortion. So if that’s where the logic of your position relentlessly leads, but you want to go on thinking of yourself as a good and decent person, you need to obfuscate that logic somehow — not just for other people, but for yourself.
That’s what the rest of us need to understand: When pro-lifers give the Standard Answer, they aren’t even trying to make sense; they’re trying to comfort themselves. They’re trying to minimize the cognitive dissonance that comes from advocating something harsh and heartless while claiming to be good Christian people.
Trump didn’t misstate the logic of their position, he just failed to include the comforting obfuscation they need. No wonder they got so upset.
[2] A lot of people will tell you that this position is Biblical, but it isn’t. In actual history, anti-abortion politics came first, and the justifying theology came later. None of the Bible passages ensoulment-at-conception people quote supports their position without a lot of interpretation, and many are simple taken out of context.
On the other hand, Genesis 2:7 states pretty clearly that the soul enters the body with the first breath:
And the Lord God made man of the dust of the ground, and breathed into his nostrils the breath of life, and man became a living soul.
That interpretation is reinforced by the fact that the words for breath and soul in Biblical Hebrew are very similar.
[3] In 2012, I described the role that legal abortion played in the choices my wife and I made in “What Abortion Means to Me“.
Reversing Citizens United might take a decade or more. But that doesn’t mean nothing can be done in the meantime.
A few weeks ago I got an email from an anti-Citizens-United group inviting me to learn about their 10-year plan for amending the Constitution to regain control of money in politics.
I think they wanted to motivate me and give me hope, but in fact I found their message depressing. I know they were trying to be realistic, but maybe I just wasn’t ready for that much reality: Ten years? And a result that soon only if everything goes according to plan!
But they’re right; constitutional amendments face a high bar, and building up the strength to clear that bar can take a long time. The various groups and leaders pushing a constitutional amendment haven’t even united on a text yet, or even an intention: Should the amendment just deal with campaign finance, or should it also cover corporate personhood? Should it ban corporate contributions itself, or just empower Congress to do so? And so on.
I have to admit it: Given where we are, ten years might be optimistic.
But Scalia’s gone. Doesn’t that change everything? OK, maybe a constitutional amendment is still far in the future, but couldn’t the Supreme Court just reverse Citizens United itself? In theory, yes. The Supreme Court could find a case tomorrow, and issue a ruling that said, “Our bad. Let’s just pretend that never happened.”
If the Senate approves Judge Garland, or if Bernie or Hillary gets to replace Justice Scalia with somebody even more liberal, quite likely the Court will soon have a majority that even wants to undo CU. But there’s still a problem: The law isn’t supposed to work that way, and (in spite of decades of conservative complaints about “liberal activist judges”) the four current liberal justices plus Garland or whoever probably will have more legal integrity than to reverse a ruling just because they don’t like it. [1]
The Supreme Court is supposed to work according to a principle called stare decisis, which basically means that old decisions should stand. In general, it wouldn’t do for the laws to keep shifting every time a new justice got appointed, so the Court is obligated to try to make past decisions work, even if the current justices would have decided those cases differently. [2]
So a more liberal Supreme Court may stop the bleeding, in that it probably wouldn’t continue John Roberts’ conservative-judicial-activism project of dismantling campaign finance law completely. But we can’t count on it to reverse old decisions, at least not without trying everything else first.
What exactly are we stuck with? For the time being, then, we’re stuck in the world Citizens United created. And that leaves us with the question: Given that we’re stuck here, is there anything we can do to make our politics less corrupt, and to lessen the undue influence billionaires and corporations have on the political process? In other words: Is there legislation (short of a constitutional amendment) that Congress could pass and that the Supreme Court wouldn’t declare unconstitutional?
Answering that question requires us to understand what exactly we’re stuck with. Basically what it comes down to is:
Money is speech.
The more political speech the better.
There is even — I hate to admit — a certain logic to this. We don’t put any limits on how much Verizon can spend on convincing us that they have the best wireless network, or how much Pfizer can spend telling us that they have the answer to erectile dysfunction. So why should political advertising be treated worse? The Founders’ intent was that political speech be freer than any other kind, not more restricted.
The big problem with Citizens United is that while it does recognize some exceptions to those principles, it ignores situations so similar as to make no difference. For example, CU still allows a ban on quid-pro-quo campaign contributions. In other words, you can’t say to a senator: “I’ll contribute a million dollars to your super-PAC if you vote for this bill that benefits my business” (at least not if somebody in the room is wearing a wire). But if a senator just happens to vote your way a lot and you just happen to spend a pile of money to keep him in office, that’s fine. [3]
In the real world, of course, large contributions are a corruption problem, even if no direct quid pro quo exists or is even implied. Imagine, for the moment, that Senator Inhofe came to his position on climate change honestly. Even so, it’s hard to imagine any Oklahoma citizen getting him to change his mind through evidence or argument, simply because at this point Inhofe knows which side his bread is buttered on. As Upton Sinclair put it: “It is difficult to get a man to understand something, when his salary depends on his not understanding it.”
What that leaves. In short, according to the current interpretation of the First Amendment, the law can’t get between a large contributor and the megaphone he wants to buy or rent to make his point. So what options does that leave?
It’s simple really: The law can try to influence the other players in the system. It can give more power to small contributors, and to people who don’t have enough money to contribute to political campaigns at all. And it can influence candidates to refuse money from corporate PACs and instead focus their fund-raising on the newly empowered small donors.
In other words, if we can’t stop billionaires from spending vast amounts to get their way, we can at least make sure that they aren’t gatekeepers. We can use public money to make sure there is a non-billionaire-approved path to financing a congressional campaign. So yes, there will continue to be billionaire-funded and corporate-funded candidates running for Congress. But those don’t have to be all the viable candidates.
The problem with public financing. In a nutshell: Systems that finance campaigns with public money tend to become status-quo-protection schemes.
In every election there are fringe candidates who run just for vanity’s sake or to promote some crazy point of view. (In recent New Hampshire presidential primaries, we’ve had Vermin Supreme, who could generously be described as a performance artist.) If public financing were available to pay for their campaigns, they’d come out of the woodwork, wasting huge quantities of tax money.
So a candidate-based public financing system needs some way to vet the candidates. Looking at recent presidential candidates, for example, the system would have needed some way to decide that, say, Martin O’Malley and Jim Gilmore were serious in a way that Vermin Supreme wasn’t (even though most of the electorate hadn’t heard of any of them). In practice, such a system tends to favor incumbents (who obviously are serious candidates) and to favor the Republicans and Democrats over any new parties that try to emerge. (If you’re the Republican or Democratic nominee for an office, you’re obviously serious; if you’re nominated by the Rent is Too Damn High Party, maybe not.)
So a candidate-based or party-based campaign-finance system is easily painted as the Washington political establishment voting to subsidize itself. And if the public doesn’t keep close tabs on it, that’s what it can turn into.
Keeping citizens in control. Ideally, candidates in every race from the presidency down to city council would be able to do what Bernie Sanders is doing: raise enough money from small contributors to run a viable campaign. Sanders may not win and he may be outspent, but he has raised enough money to tell the voters who he is and what he wants to do.
Such small-donor financing may just barely be possible at the presidential level, where even low-information voters pay some degree of attention fairly early in the process. But is the waitress or trucker who gives $50 to Bernie Sanders also going to come up with $50 every couple of years for a Senate candidate and a House candidate and a governor and on and on? How will such voters even learn enough about lower-office candidates to know which ones are worth supporting? The way things stand, planning a congressional campaign around these kinds of contributors just isn’t practical. And that’s why Congress seems so corrupt: If you’re serious about running a competitive campaign, you have to either raise money from special interests or be so rich that you’re practically a special interest yourself.
But even at the level of senator and representative, it’s not impossible to raise money from small donors, it’ s just very, very unlikely that you’ll raise enough of it. And that brings us to the idea of small-donor public financing: What if public financing wasn’t focused on candidates or parties, but instead was used to magnify the effect of small donors? In other words, what if your donation of $20 to a candidate qualified that candidate for an additional $100 of public financing?
Such a plan would leave citizens in control, rather than bureaucrats or politicians. If voters wanted to give money to a well-known Republican or Democrat, fine. But if they’d rather give to an outsider major-party candidate, or to a Libertarian or a Socialist, or even to Vermin Supreme, that would be up to them. The public money would follow their lead.
A $25 tax credit for people who contribute at least $25 to a congressional candidate. Essentially, the government is refunding to you the first $25 of contributions you make. So almost everybody has the means to donate something.
A 6-to-1 match of contributions up to $150 to congressional candidates who qualify for the match by agreeing to forego PAC contributions and getting sufficiently many small contributions. So if you give a qualifying candidate $50, his campaign gets $300. [5]
Provides additional matching in the home stretch of a campaign for candidates who raise $50,000 in small-donor contributions.
So even under the current Supreme Court interpretations of the First Amendment, no billionaire’s or lobbyist’s rights are infringed. If the Koch Brothers want to spend millions to oust your representative (as they have tried to oust mine), they still can. But a candidate who wants to appeal to the people rather than to monied interests has a plausible path to victory. Sarbanes does the math:
Imagine 35 people gathering at a neighbor’s home, each giving $50. With matching funds, that would add up to $10,500. Do five of those events, and 175 people donate a combined $52,500.
Politicians suddenly would find it worthwhile to spend time in backyards with real voters, rather than in rarefied high-rises with big shots. More importantly, the candidate would have made connections with people who would be willing to knock on doors and help work phone banks, something K Street swells never would do.
Why would Republicans go for this? As the party that benefits most from big-money contributions, Republicans generally get an advantage from the current system. So naturally, most of the current co-sponsors of Sarbanes’ bill are Democrats.
But among voters, Republicans worry as much as Democrats about the corruption of the current system. (That’s why Trump’s pledge to self-finance his primary campaign is working so well for him.) And while any public-financing plan would have a cost, there is a conservative case that this would be money well spent: If it could prevent just one Bridge to Nowhere or one Solyndra loan, the plan would easily pay for itself. That’s why a Republican as conservative as North Carolina’s Walter Jones is on board.
And there’s a self-serving answer to why congresspeople of either party might support such reform: If you build a network of small donors in your district, that network is yours. No one can call you up and threaten to take it away from you if you don’t do what they want. But under the current system, many apparently secure senators and representatives live in terror of getting such a call.
Whether we’re talking about liberals or conservatives, no one goes into politics because they dream of toadying for lobbyists and kissing the rings of billionaires. The dream is of being a real decision-maker, not the puppet of some vested interest.
Summary. We can continue laying the groundwork for an anti-Citizens-United constitutional amendment some time in the far future, and we can continue hoping that a future Supreme Court will see the inherently corrupting nature of huge campaign contributions. But in the meantime, there is an actual piece of legislation that would be a big help.
Politicians who think the current system works in their favor may want to ignore that bill. But their voters — even their conservative Republican voters — see the problem and want a solution. So if we can get the Sarbanes bill on the national agenda, to the point that every candidate will have to take a position on it, lots of people you don’t expect might decide they’d better support it. And even politicians who seem to be securely on somebody’s leash may decide they’d like to chew through that leash.
[1] Just for perspective: During the ten years between Scalia’s death and, Alito replacing O’Connor in 2006, the Court probably had a majority that wanted to reverse Roe v Wade. But it didn’t happen.
[2] A good example of how the process is supposed to work is in Chapter 4 of David Strauss’ book The Living Constitution, in which he describes how Brown v Board in 1954 came to overrule Plessy v Ferguson of 1896. The 1954 Court didn’t just reverse the 1896 Court out of the blue. In between came a long series of cases, in which the Court kept trying and failing to square “separate but equal” with the rest of the American legal tradition. By 1954, separate-but-equal was so full of exceptions and provisos that it couldn’t hold together. So Brown wasn’t just saying that separate-but-equal was a bad idea, it was saying “We tried to make this work and we can’t do it.”
[3] Suppose, say, that Senator James Inhofe is the voice of climate-change denial in the Senate and uses his position as chair of the Environment and Public Works Committee to block any effort to shift America away from its dependence on fossil fuels. And then suppose that his top campaign contributions all come from producers or consumers of large quantities of fossil fuels. The Supreme Court sees no problem there that the law might want to address; quite the opposite, it sees any law that might get in the way of that arrangement as a violation of free speech.
In particular, there are virtually no limits to what a contributor can spend on political “speech” if there is no direct coordination with the candidate. So if, say, the Koch Brothers decide (totally on their own) that (for the good of the country) they want voters to keep electing wise senators (like Jim Inhofe), and if they want to spend vast amounts of their money to say so (whether Jim Inhofe likes it or not), that is simply their First Amendment right.
[4] If the name rings a bell, you’re probably thinking of his father, Senator Paul Sarbanes.
[5] To me, that sounds like a 5-to-1 match, with your original dollar making the sixth. But apparently that’s not how they figure. I’m making my math consistent with the examples Sarbanes gives.
If we can’t make our republican system of government work, eventually the people will clamor for a leader who can sweep it all away. Many of them already do.
In the 2013 post “Countdown to Augustus” I laid out a long-term problem that I come back to every year or so:
[R]epublics don’t work just by rules, the dos and don’t explicitly spelled out in their constitutions. They also need norms, things that are technically within the rules — or at least within the powers that the rules establish — but “just aren’t done” and arouse public anger when anyone gets close to doing them. But for that public anger, you can often get an advantage by skirting the norms. And when it looks like you might get away with it, the other side has a powerful motivation to cut some other corner to keep you in check.
… As Congress becomes increasingly dysfunctional, as it sets up more and more of these holding-the-country-hostage situations, presidents will feel more and more justified in cutting Congress out of the picture.
We know where that goes: Eventually the Great Man on Horseback appears and relieves us of the burden of Congress entirely.
The immediate motivation for that post was the debt-ceiling crisis of 2013, when Congress was threatening to blow up the global economy unless President Obama signed off on the repeal his signature achievement, ObamaCare. Various bizarre ways out were proposed, including minting a trillion-dollar coin to deposit with the Federal Reserve.
I had previously raised the declining-norms theme in “Escalating Bad Faith“, about the tit-for-tat violation of norms relating to presidential appointments and the filibuster, going back several administrations. And I returned to it in 2014 in “One-and-a-half Cheers for Executive Action” as Obama tried to circumvent the congressional logjam on immigration reform.
The historical model I keep invoking is the Roman Republic, which didn’t fall all at once when Julius Caesar crossed the Rubicon or his nephew Octavian became the Emperor Augustus, but had been on such a downward spiral of norm-busting dysfunction for so long (about a century) that it was actually a relief to many Romans when Augustus put the Republic out of its misery. In “Countdown” I pointed out the complexity of that downward trend:
About half of the erosion in Rome was done by the good guys, in order to seek justice for popular causes that the system had stymied.
So now we are experiencing a new escalation in norm-breaking: The President has nominated a well-qualified judge to fill a vacancy on the Supreme Court, and the Senate is simply ignoring him.
At various times in American history, individual senators of both parties have postured about the Senate’s prerogatives, usually in the abstract, and usually in an attempt to influence the president to choose a nominee more to their liking than the ones they suspected he had in mind. But in the long history of the American Republic, we have never been in this place before. The Senate has never simply ignored a nominee for the Supreme Court.
The gravity of this may not be apparent to most Americans. Day to day, the country is continuing just fine without a fully staffed Court. Justice Scalia died over a month ago, and his absence isn’t causing anything in particular to go wrong. In some ways it’s like operating a nuclear power plant with the emergency-response systems turned off: As long as there’s no emergency that needs a response, nobody notices.
But what happens if the 2016 election comes out like the 2000 election? What if the outcome hangs on some dispute that only the Supreme Court can resolve? As hard as it was on the country when the Court’s poorly reasoned 5-4 decision in Bush v Gore handed the presidency to the man who lost the popular vote, imagine where we would be if the Court had tied 4-4 and been unable to reach a decision?
Constitutional crises are rare in this country, but they happen, and only the Supreme Court can resolve them in a way that preserves our system of government. Legally, a tie at the Court means that the lower-court opinion stands, whatever it was. But in a true crisis, would a lower court have the prestige to make the other branches of government respect its decision?
Go back to the Watergate crisis, and the Court’s order that the Nixon administration turn over to Congress its tapes of Oval Office conversations. At the time, some advised Nixon to defy the Court and burn the tapes. What would have happened next is anybody’s guess, but the unanimity of the Court’s decision gave it additional moral force, and Nixon complied — even though the tapes led quickly and directly to his resignation. If that decision had split 4-4, along what were seen to be partisan lines, history might have played out differently. Nixon might have reasoned that he wasn’t defying a lower court, he was just breaking the tie.
Disputes between lower courts also happen, and if the Supreme Court can’t resolve them, we wind up with different laws applying in different jurisdictions. Imagine, for example, if the availability of ObamaCare or whether you could get married, depended not on which state you live in, but which federal appellate district.
What if appellate courts disagree about jurisdiction? If a government computer in Utah captures a phone conversation between Georgia and Wisconsin, that one case might lead three courts to rule simultaneously on whether the Fourth Amendment has been violated. Whose order should be followed?
Scenarios like that show why leaving a vacancy at the Court is playing with fire. Maybe we’ll get away with it this time. Maybe nothing that can’t be put off or papered over will happen between now and whenever the Senate starts processing nominations again — say, next year. (Or maybe something will happen, and some other branch of government will decide to seize whatever illegitimate power it thinks is necessary to keep the country running.)
But an optimistic reading of the situation only works if we ignore the larger trend. This is not an isolated incident, and we will not return to “normal” after it resolves. Once broken, a norm is never quite the same. The next violation is easier, inspires less public outrage, and usually goes farther. Jonathan Chait elaborates:
It turns out that what has held together American government is less the elaborate rules hammered out by the guys in the wigs in 1789 than a series of social norms that have begun to disintegrate. Senate filibusters were supposed to be rare, until they became routine. They weren’t supposed to be applied to judicial nominations, then they were. The Senate majority would never dream of changing the rules to limit the filibuster; the minority party would never plan to withhold all support from the president even before he took office; it would never threaten to default on the debt to extort concessions from the president. And then all of this happened.
More likely than a return to the prior status quo is that blockades on judicial appointments will become just another “normal” tactic. After all, the Constitution may assign the Senate the duty to “advise and consent” on nominations, but it sets no time limit. Founding-era commentary, like Federalist 78, may envision a Court that is above politics. (The whole point of a lifetime appointment is to make any political deal with a nominee unenforceable. Once a justice is in, that’s it; he or she is beyond reprisal and requires nothing further from any elected official.) It may take for granted that the Senate will consider nominees on their individual merits, rather than on which partisan bloc chooses them. But the Founders didn’t explicitly write any of that into the rules, so …
If Hillary Clinton wins in November and Republicans retain the Senate, they may feel shamed by their promises to let the voters decide the Court’s next nominee and give her a justice. Or maybe not — maybe some dastardly Clinton campaign tactic, or reports of voter fraud on Fox News, will make them rescind their promise. The Supreme Court could remain deadlocked at 4-4 for the remainder of her term, causing federal rulings to pile up and further fracturing the country into liberal and conservative zones with dramatically different constitutional interpretations.
Conversely, if a Republican wins the White House while Democrats retake the Senate, the new Senate majority leader may decide that, rather than let Republicans reap the benefit of their new tactic, he’ll just push it further. Chait describes what either course leads to:
A world in which Supreme Court justices are appointed only when one party has both the White House and the needed votes in Congress would look very different from anything in modern history. Vacancies would be commonplace and potentially last for years. When a party does break the stalemate, it might have the chance to fill two, three, four seats at once. The Court’s standing as a prize to be won in the polls would further batter its sagging reputation as the final word on American law. How could the Court’s nonpolitical image survive when its orientation swings back and forth so quickly?
… The Supreme Court is a strange, Oz-like construction. It has no army or democratic mandate. Its legitimacy resides in its aura of being something grander and more trustworthy than a smaller Senate whose members enjoy lifetime appointments. In the new world, where seating a justice is exactly like passing a law, whether the Court can continue to carry out this function is a question nobody can answer with any confidence.
Our awareness of our dissolving norms ought to be sharpened by the current presidential campaign. Donald Trump makes a lot more sense as a candidate when you realize that he’s not running for President, he’s running for Caesar. His fans and followers are looking for that Man on Horseback who will sweep away all the rusted-over formalities and just make things work.
The Washington Post provides the following graph, based on data from the World Values Survey. It’s disturbing enough that 28% of American college graduates think it might be good to have “a strong leader who doesn’t have to bother with congress and elections”, but among non-graduates it is actually a close question: Democracy still beats authoritarianism, but only 56%-44%.
Vox has several graphs like this one, showing that frustration with democracy is increasing:
The pundits, representing an educated class that still mostly thinks democracy is a good idea, are horrified whenever Trump breaks one of the norms of American political campaigns by endorsing violence, or insulting entire religions or ethnic groups, or talking about the size of his penis during a televised debate. Yet his popularity rises, because here is a man who won’t be bound. He refuses to be tied in knots by rules or traditions or archaic notions of courtesy and honesty and fair play. His willingness to break our taboos of public speech symbolizes his willingness to break our norms of government once he takes power — not one at a time, like Mitch McConnell, but all of them at once. And lots of people like that.
Some of the biggest applause lines in a Trump speech are when he imagines exercising powers that presidents don’t have (if Ford tries to move an auto plant to Mexico, he will impose punitive tariffs until they back down), or using American military power for naked aggression (if Mexico won’t pay for the wall he wants to build, he’ll attack them), or committing war crimes (if terrorists aren’t afraid of their own deaths, he’ll have to kill their families).
Establishment Republicans are currently wringing their hands about the prospect of Trump leading their party into the fall elections. They are searching party rules for norm-bending ways to deny him the nomination in spite of the primary voters. But long-term, the way to stop Trump and future prospective Caesars is simple: Make democracy work again.
It’s not rocket science: End the policy of blanket obstruction. Pass laws that have majority support rather than bottling them up in the House or filibustering them in the Senate. Seek out workable compromises that give each side something to take pride in, rather than promoting an ideal of purity that frames every actual piece of legislation as a betrayal. Stop trying to keep people you don’t like from voting, or gerrymandering congressional districts so that voting becomes irrelevant. Come up with some workable campaign-finance system that lets legislators pay attention to all their constituents, rather than just the deep-pocketed ones.
In short, don’t just follow the rules in the most literal way possible, grabbing every advantage they don’t explicitly forbid; govern in good faith, fulfilling to the best of your abilities the duties you have been entrusted with.
They could start by holding hearings on Judge Garland, as if he were a presidential nominee and one of the most widely respected judges in the country (which he is). By itself, that may not save the Republic, but it would be a welcome gesture of good faith.
The 2016 Republican primaries, in which none of the establishment candidates seemed to understand where the real threat was coming from until it was too late, have a lesson for politicians of both parties: The most important fight of our era is not the Republicans against the Democrats, the liberals against the conservatives, or even the collectivists against the individualists. The battle we have to win is the Catos and Ciceros against the Caesars.
If the American Republic is going to survive, its mechanisms have to work. If they don’t work — if the system stays as clogged as it has been these last few years, and each cycle of attack-and-reprisal gums things up worse — then eventually someone will sweep it all away. Maybe not Trump, maybe not this year, but someone, someday sooner than you might think possible. That would be a tragedy of historic proportions, but crowds would cheer as it happened.
Their answers weren’t all that impressive, and I suppose I shouldn’t have expected them to be. After all, the question resembles the standard “What is your biggest weakness?” challenge that job interviewers have been throwing at applicants forever, usually with disappointing results.
Probably nobody’s answer to Lemon’s question would be 100% accurate, because your biggest blind spots are always the ones you aren’t aware of, what Donald Rumsfeld used to call the “unknown unknowns“. If you can describe a blind spot, you’ve already taken a step towards filling it in.
So while it would be easy to stand in judgment over Bernie and Hillary’s answers, the more interesting question is: How would I answer Don Lemon? What are my racial blind spots?
Blind spots come mainly from the holes in a person’s experience, and I certainly have some. As a white person, I have been in the racial majority almost everywhere I’ve gone. I grew up in a mostly white neighborhood, went to mostly white schools, and earned my living in mostly white workplaces. In stores I (mostly) stand in line with other whites. If I find myself sitting next to a stranger at a bar, it’s usually another white. On TV dramas, I mostly watch white people deal with the problems of other white people. And on TV news shows — Don Lemon notwithstanding — I mostly watch whites interview other whites.
Being white may not be mandatory in my world, but it is normal.
I understand that not every white person’s experience is that limited. You might have been the one white guy on your high school basketball team, or the lone white waitress at a Mexican restaurant, or something like that. But I never was.
And that (lack of) experience gave me this blind spot: Thinking about race seems optional to me.
But I think about that stuff when I choose to. I have, for example, read Maya Angelou’s I Know Why the Caged Bird Sings. And while I was reading, I thought a lot about growing up black in the Jim Crow South. But as soon as I put that book down, Angelou’s reality vanished for me as completely as Westeros does when a Game of Thrones episode ends.
And so, I have a hard time grasping that thinking about race isn’t optional for American blacks. To be black in America is to be constantly aware that many of the people around you are white, and that they might at any moment start reacting strangely to your blackness.
I just finished reading Democracy in Black by Eddie Glaude Jr. Mostly it’s a book about politics written by a Princeton professor. But a few personal stories sneak in. At one point in his childhood, Glaude’s family moved from the black part of their small Mississippi town to the “good” part, a section occupied by whites and a few upwardly mobile black families. On his first day in the new neighborhood, Glaude and another boy were playing in the dirt with their toy trucks, until the boy’s father came out and yelled at his son: “Get over here. Stop playing with that nigger.”
Another story concerned Glaude’s son Langston, who he sent to Brown. Langston’s urban studies class was assigned to visit a rich Providence neighborhood and make various observations. But in a wealthy neighborhood, a young black man sitting on a park bench with a notebook draws police attention, and being an Ivy League student or the son of an Ivy League professor is no excuse. With a hand on a weapon, a policeman intimidated Langston until he voluntarily left.
You can listen to stories like that (which nearly all blacks seem to have) and think: “Those are just isolated incidents. I’ll bet that doesn’t happen very often.” But how often would it have to happen before you came to the conclusion that you had to be on your guard all the time?
Blacks can never “check out” of race. They can’t say, “Today I’m just going to be a human being and forget about being black.”
But I can forget about race whenever I want, and so sometimes it seems strange to me that they don’t. “I don’t see race,” a lot of whites say, and I know what they mean: Of course I notice that the new guy at work is black, but it’s not a thing. I’m not going to go all In the Heat of the Night on him and act like black people shouldn’t have these sorts of jobs. I’m not going to harass him or insult him or treat him badly in any conscious way. If somebody makes it a thing, it’s not going to be me.
Because that’s how my blind spot tempts me to think about race: It’s optional. I can choose not to think about being white and he can choose not to think about being black, and then there won’t be any race problem.
But the new guy can’t just stop thinking about being black, any more than I could stop thinking about being white if somebody dropped me into the middle of Africa. What’s more, he shouldn’t, for the sake of his own safety. What if, when the policeman put his hand on his gun, Langston Gaude hadn’t thought about being black, and instead had thought about being an American citizen in a place where he had every right to be? Might he not have become the next Eric Garner or John Crawford?
That’s what “the talk” is about: Making sure that when the police show up, your black son will never forget that he’s black.
If you’re black in America, you never know when your blackness is going to become an issue. And if it is becoming an issue, you’d better not be slow to catch on, because you’ll need to implement some strategy — challenge, retreat, deflect, avoid — before things get out of hand.
Of course, race wouldn’t seem optional to me if I didn’t also have a second blind spot: a belief that unconscious racism doesn’t count. If I’m not trying to be a racist, well, that should be good enough. So of course it would be wrong for me to say (or even to think) “I don’t want to hire that guy because he’s black.” But if I just have a bad feeling about him, while one of his white competitors impresses me for no quantifiable reason — what’s wrong with that? Don’t I have a right to have hunches about people?
Sure I do. But before I act on those hunches, I ought to take into account the ways my thinking and feeling have been shaped by the cultural stereotypes built up over centuries. Even today, being black in America is like playing golf on a course that is more sandtrap than fairway. Getting to the green isn’t impossible, but just about anything blacks do exposes them to negative judgment, because there’s a very narrow path between lazy and pushy, between too sloppy and too flashy, between looking stupid and being a know-it-all, between refusing to stand up for yourself and being scary. That cellphone he’s taking out of his pocket looks like a gun because … well, it just does. And when Barack Obama acts like he’s President of the United States, it looks uppity. Who does he think he is?
We may not call people niggers any more, but the stereotypes that were designed to keep niggers in their place are still with us.
But if unconscious racism is something I have to take into account, then I have to think about race all the time. And that’s another thing to project onto blacks and resent: Why do they make everything about race? Why can’t we just be people together?
There’s an answer to that, but I hate to hear it: One big reason we can’t just be people together is that I don’t know how. I know how to pretend that I’m doing it. I know how to act as if I didn’t notice race. I know enough not to use certain words or tell certain kinds of jokes. I think I know how to get past my unconscious racism with individual people, eventually, once I get to know them. (But whether that’s true or not, you’d have to ask them.)
But I don’t know how to be people together with everyone, regardless of race. All I know is how not to notice when I’m failing. I can just take all that evidence and shove it into a blind spot.
What the McGovern Problem isn’t. Often the McGovern Problem gets stated too simplistically, which makes it easy to shoot down: Democrats can’t run a candidate who’s too liberal. It’s as if the White House were a roller coaster, with a sign outside saying: “You must be at least this conservative to enter.”
Bush painted Dukakis as 
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There have been a few cracks, but Mitch McConnell’s blockade of Merrick Garland’s Supreme Court nomination 
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